High Court Punjab-Haryana High Court

Mohinder Pal Singh Samundri vs Smt. Janki Devi on 21 August, 2009

Punjab-Haryana High Court
Mohinder Pal Singh Samundri vs Smt. Janki Devi on 21 August, 2009
RSA No. 3088 of 2009                                    (1)

        IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                        CHANDIGARH

                                     RSA No. 3088 of 2009
                                     Date of Decision: 21.8.2009

Mohinder Pal Singh Samundri                             ......Appellant

            Versus

Smt. Janki Devi                                         .......Respondent

CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA.

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporters or not?

3. Whether the judgment should be reported in the Digest?

Present: Shri Sunil Agnihotri, Advocate, for the appellant.

HEMANT GUPTA, J. (Oral).

The defendant is in second appeal aggrieved against the

judgment and decree passed by the Courts below, whereby the suit of the

plaintiff for possession of land measuring 1 kanal 6 marlas was decreed in

its entirety by the learned trial Court, but such decree was modified by the

learned first Appellate Court, thereby maintaining the same in respect of the

land measuring 19 marlas only.

It is the case of the plaintiff that the land of the defendant is

adjacent to the land of the plaintiff on the western side, but the defendant

has encroached upon the land measuring 1 kanal 6 marlas of her land. To

demarcate the property of the parties, Shri Sumittar Singh, retired Girdawar

was appointed as Local Commissioner by the learned trial Court. The Local

Commissioner has submitted his report Exhibit P.3.

RSA No. 3088 of 2009 (2)

Both the Courts have relied upon the said report of the Local

Commissioner to return a finding that the appellant-defendant has

encroached upon the land of the plaintiff. It has been found that the Local

Commissioner has carried out the process of demarcation after fixing three

pucca points and the process of demarcation is in accordance with the

instructions issued by the Financial Commissioner.

Learned counsel for the appellant in the present second appeal

has raised two fold arguments. Firstly, it is contended that the Local

Commissioner has visited the site in dispute on 9.5.1999 in the absence of

the appellant and has given report on the aforesaid date. It is, thus,

contended that the visit of the Local Commissioner on 9.5.1999 and to give

report on the aforesaid date violates the principles of natural justice.

Secondly, it is argued that the Local Commissioner, while appearing as

DW2 has admitted that he has not demarcated the land of the defendant.

Thus, it is argued that demarcation of the land of the plaintiff alone will not

be sufficient to return a finding that the defendant has encroached upon the

land of the plaintiff.

Both these arguments have been considered in detail by the

learned first Appellate Court. It is found that though the Local

Commissioner has visited the site in dispute on 9.5.1999, but he has not

taken any action on that day. Mere visit to the site in dispute on 9.5.1999 by

the Local Commissioner, cannot be said to have caused any prejudice to the

rights of the appellant. It has been further found that the Local

Commissioner has been cross-examined at length spreading over five

hearings, therefore, the mere fact that the Local Commissioner has visited

the site in dispute on 9.5.1999 is not sufficient to discard his report.

RSA No. 3088 of 2009 (3)

The argument that the Local Commissioner has admitted that

he has not demarcated the land of the defendant, has also been considered

by the learned first Appellate Court and found that in fact, in the report

Exhibit P.3, it has been stated that after fixing three pucca points, he

measured the land of the plaintiff as well as the defendant. It is found that

one line in the cross-examination is not sufficient to rebut the report of the

Local Commissioner, which gives the details of demarcation of the land of

the plaintiff as well the defendant.

The findings of the Courts below are based on the report of the

Local Commissioner, who has been cross-examined at length. I do not find

that the findings recorded by the Courts below suffer from any patent

illegality or irregularity, which may give rise to any substantial question in

the present second appeal.

Hence, the present appeal is dismissed.

(HEMANT GUPTA)
JUDGE
21-08-2009
ds